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Generally, if an employee voluntarily
resigns from his or her employment, the employee cannot bring an action for
wrongful dismissal. However, the law is clear that in order to be a valid and
enforceable resignation, the resignation must be "clear and
unequivocal". While an employee's actions or words may imply that he or
she has resigned, employers must also consider the employee's intentions before
relying on the employee's resignation. Recently, the decisions in Johal v Simmons da Silva LLP, 2016 ONSC 7835
and Bishop v. Rexel Canada Electrical Inc., 2016 BCSC 2351, illustrate the
risks that employers face in assuming that an employee has resigned.

In Johal
v Simmons da Silva LLP, 2016 ONSC 7835, the employee, Ms. Johal, was a
senior family law clerk who had been employed by the law firm for 27 years and
was responsible for coordinating work for the law clerks at the office. During
a meeting, the employer informed Ms. Johal that going forward, another law
clerk, who was returning from maternity leave, would be responsible for
coordinating the work. As a result of the proposed change, following the
meeting Ms. Johal left work early. The following day, Ms. Johal attended the
office and removed her personal belongings and later returned her security pass
to her employer. The employer did not attempt to contact Ms. Johal. Ms. Johal
did not return to work and she did not contact her employer until five days
after she had returned her security pass. The employer did not allow her to
return to work and it took the position that Ms. Johal had resigned. Ms. Johal
subsequently brought an action for wrongful dismissal.

The Ontario Superior Court of Justice
reviewed the law on resignation and noted that to determine whether the
employee's words or actions equate to a "clear and unequivocal"
resignation, they must be determined contextually and the surrounding
circumstances are relevant. Further, the Court noted that an employee may
resile from a resignation, provided the employer has not relied upon the
resignation to its detriment. In this case, the Court noted that Ms. Johal had
27 years of service and when she had dropped off her security pass, the
employer did not make any inquiries about what had taken place. Further, the
employer did not set up a follow up meeting and the employer also did not
attempt to contact Ms. Johal after she returned her security pass. In addition,
the Court noted that Ms. Johal did not provide the employer with any notice of
resignation and at no point did she state that she was resigning. Based on the
surrounding circumstances, the Court determined that Ms. Johal did not resign.
The Court found that, while the employer did not owe a paternalistic duty to
Ms. Johal, on the facts of the case, it was required to do more to determine
Ms. Johal's true and unequivocal intention. As the Court determined that Ms.
Johal did not resign, she was entitled to damages for wrongful dismissal.

In Bishop
v. Rexel Canada Electrical Inc., 2016 BCSC 2351, the employee, Mr. Bishop,
was a buyer in the employer's purchasing department. In December 2015, Mr.
Bishop was assigned additional work and he began feeling significantly
overburdened by the additional work. At the beginning of the next month, Mr.
Bishop's supervisor requested that Mr. Bishop continue to perform the
additional work and Mr. Bishop subsequently sent the supervisor an email
indicating that he was overburdened and he stated in the email that he
"would not be returning". Following the email, Mr. Bishop and his
supervisor had a phone call, during which the supervisor confirmed Mr. Bishop's
resignation. Mr. Bishop was then escorted from the office and asked to return
his keys. Mr. Bishop subsequently brought an action for wrongful dismissal.

The Supreme Court of British Columbia
explained the test for resignation and noted that there is an objective and
subjective test in determining whether the resignation was "clear and
unequivocal". The objective aspect of the test focuses on what a
"reasonable employer" would have thought about the intentions of the
employee based on what the employee says or does. The subjective aspect of the
test takes into account the employee's state of mind and the employee's conduct
in relation to that state of mind. This may well include the employee's timely
retraction, or attempted retraction of his or her alleged resignation. In this
case, the Court was not convinced that there was a "clear and
unequivocal" resignation. In finding that Mr. Bishop had not resigned, the
Court noted that Mr. Bishop was clearly upset and the employer should not have
taken his word as definitive without further inquiry. Further, prior to the
alleged resignation, the employer had nominated Mr. Bishop for termination or
layoff and the Court noted that the employer saw Mr. Bishop's reaction as a
convenient opportunity to terminate his employment. Finally, the Court noted
that the employer was in a rush to confirm the resignation. Accordingly, the
Court determined that Mr. Bishop had been wrongfully dismissed and was entitled
to damages, which included 20 months' payment in lieu of notice.

These cases illustrate the risk employers
take in assuming that an employee has resigned. In both cases, the incidents
involved emotionally-charged circumstances where the employer failed to
consider the surrounding circumstances and failed to determine the intention of
the employee. Where the alleged resignation takes place in the heat of the
moment, it may not be reasonable for the employer to conclude that the employee
has resigned based on the employee's statements alone. In order to minimize the
risk of a wrongful dismissal action following a resignation, employers should
ensure that the employee's resignation is “clear and unequivocal”. This
requires that employers follow up with the employee to clarify or confirm the
employee's intention to resign and employers should also request written
confirmation of the resignation. Further, as a good practice, employers should
provide the employee with an opportunity to resolve the conflict or issue prior
to accepting the resignation. While each case must be assessed differently,
failing to ensure that the resignation is clear and unequivocal can be costly
for employers.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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